Federal prosecutors acknowledge that the reports themselves were not previously turned over to the defense, but argue that the information contained in them is not new. Plus, United States Attorneys say in court documents, that information learned from free talks is generally not disclosed until "all efforts to resolve the case have been exhausted," if it's revealed at all.

Defense attorneys disagree.

"The defense understands the need to protect cooperating witnesses, but not at the expense of the constitutional rights of the defendants," federal defender Alison Guernsey argues in court documents. "If the government were truly concerned about balancing its obligations to cooperators and defendants alike, then it could have sought the Court's review of the free talk materials years ago."

Defense attorneys argue that the five-year-old reports should have been revealed years ago, and suggest that the government's failure to do so is a basis for dismissing the case altogether.
In 2012, seven men were originally indicted in connection with a Spokane Valley drug raid that police say netted more than 1,000 marijuana plants (though 677 of those "plants" were either empty pots, or pots that contained "the root structure of suspected harvested marijuana plants") and one firearm.

Since then, the case has languished in the system as attorneys traded blows and the men attempted to move on with their lives under threat of federal indictment. In 2015, the case was included in a sweeping 9th Circuit Court of Appeals decision that barred the federal government from spending money on medical marijuana grow operations, as long as they complied with state law.

Then in May, at least three of the men were ready to plead guilty when defense attorneys discovered the undisclosed "free talk" reports. The men did not plead guilty, and U.S. District Judge William F. Nielsen rebuked federal prosecutors for the delay. Nielsen suggested the government could face sanctions if the reports amounted to a violation of the defendant's rights.

Until now, the "free talk" reports in question have been sealed from the public's eye. Complete copies are still not publicly available, but summaries filed by defense attorneys seem to indicate that the men believed they were operating a medical grow operation.

U.S. Attorneys say that doesn't matter.

"Whether all the defendants, or some of the defendants, intended to operate a medical marijuana grow is irrelevant," court documents state. "The defendants must show that they were in full compliance with the provisions of Washington medical marijuana law — if compliance is even possible — not the alleged purpose for which it was grown."

The next hearing is scheduled for Tuesday, July 25, at 9 am in Spokane. It's unclear what, if any, action Judge Nielsen will take. One option is to dismiss the case.

"The government's concern about its reputation should fall on deaf ears," Guernsey writes in court documents. "As the Supreme Court aptly cautioned ... 'a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence,' lest the prosecution find itself on the wrong side of justice."